Ogola v Alila (Environment and Land Appeal E031 of 2024) [2026] KEELC 1688 (KLR)

By consent the proceedings had been stayed for 60 days to allow the High Court to determine the related matter. On 21/5/2024 the defendant confirmed the High Court case had been dismissed, so no case was pending before a higher court. Similarly, the succession cause ruling had been delivered, so nothing remained pending. The bar under section 6 of the Civil Procedure Act was therefore inapplicable at the time of hearing.

Relying on Susan Mumbi v Kefala Grebedhin, the court held that a court does not presume adverse evidence in civil cases and whoever alleges must prove. The plaintiff produced the letters of administration, the Land Certificate showing his father as registered proprietor and official searches; the defendant pleaded adverse possession but adduced no evidence, so his claims were mere statements. The title was unimpeached by any evidence of fraud.

The defendant adduced no evidence to prove limitation. The plaintiff's uncontroverted evidence showed several interruptions of the defendant's stay on the land, with the last re-entry in 2013. Since the suit was filed in 2020, only seven years after the re-entry, the 12-year period had not accrued and the claim was not barred.

Citing Luke Cheruiyot v National Oil Corporation and Microsoft Corporation v Mitsumi Computer Garage, the court held that rules of procedure are handmaidens of justice, the power to strike out a plaint for want of a verifying affidavit is permissive rather than mandatory, and lapses that do not go to jurisdiction or cause fundamental prejudice should not nullify pleadings. It was the contents, not the existence, of the affidavit that were impugned.